Jones v. Caddo Parish School Bd.

• Decision Date: 09 July 1984
• Docket Number: No. 81-3439,81-3439
• Citation: 735 F.2d 923
• Parties: , 18 Ed. Law Rep. 171 Beryl N. JONES, et al., Plaintiffs, v. CADDO PARISH SCHOOL BOARD, et al., Defendants-Appellees, v. June PHILLIPS, Movant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 923

735 F.2d 923

39 Fed.R.Serv.2d 687, 18 Ed. Law Rep. 171

Beryl N. JONES, et al., Plaintiffs, v. CADDO PARISH SCHOOL BOARD, et al., Defendants-Appellees, v. June PHILLIPS, Movant-Appellant.

No. 81-3439.

United States Court of Appeals Fifth Circuit.

July 9, 1984.

Troy E. Bain, Shreveport, La., for movant-appellant.

Beard, Arceneaux & Sutherland, Fred H. Sutherland, Shreveport, La., Brian F. Heffernan, Wm. B. Reynolds, Asst. Atty. Gen., Jessica D. Silver, Wm. R. Yeomans, Civil Rights Div., Appellate Sect., Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge, BROWN, GOLDBERG, GEE, RUBIN, REAVLEY, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges. ^*

GARWOOD, Circuit Judge:

This is an appeal by June Phillips from the denial of her motion to intervene, individually and on behalf of a class of black parents and children, in this long-pending litigation concerning the desegregation of the Caddo Parish school system. We sustain the district court's ruling, holding that it did not abuse its discretion in determining that Ms. Phillips' motion was untimely.

This litigation began in 1965 when seven black school children and their parents filed a complaint against the Caddo Parish School Board alleging the school system was operated on a biracial basis, in violation of their rights under the equal protection clause of the fourteenth amendment. Plaintiffs sought to represent themselves and a class of "Negro children and their parents in Caddo Parish," pursuant to Rule 23(a)(3), Fed.R.Civ.P., as then in effect. ¹ Later the same year, the United States sought to intervene as a party plaintiff pursuant to Title IX of the 1964 Civil Rights Act, 42 U.S.C. Sec. 2000h-2. ² We held it was entitled to do so, United States v. Jefferson County Board of Education, 372 F.2d 836, 896 (5th Cir.1966), aff'd with modifications, 380 F.2d 385 (5th Cir.) (en banc), cert. denied, 389 U.S. 840, 88 S.Ct. 77, 19 L.Ed.2d 104 (1967), and thereafter the United States has participated as a party to the case.

As set out in more detail below, in 1973 the district court approved and made "the order of this Court" a school desegregation plan developed after several public hearings by a biracial Citizens Committee which the court had appointed on the motion of the United States. The Committee's unanimous report stated that the plan's full implementation would convert "the school district to a unitary system." The United States approved implementation of the plan, but did not commit itself, one way or the other, as to whether the plan would achieve unitary status. The plaintiffs, however, not only requested implementation of the plan, but also specifically took the position that its complete implementation "will provide a unitary school system in Caddo Parish." Later the same year, several other black parents and students sought to intervene, individually and as representatives of a class or subclass of black students and parents, to attack the 1973 plan on the ground that it maintained too many "racially identifiable and one-race schools." They alleged that the plaintiffs did not adequately represent their interests and the United States did not either. In August 1974 we reversed the district court's denial of the requested intervention, holding that the applicants "are entitled to an evidentiary hearing on their motion to intervene." Jones v. Caddo Parish School Board, 499 F.2d 914, 917 (5th Cir.1974) (per curiam). The attempted intervention, however, was never pursued thereafter. The school district continued to operate under the 1973 plan until 1981, and the case remained largely inactive. After August 1974 the plaintiffs took no action whatever in the case, except for filing a memorandum in January 1977 taking the position that the 1973 plan had not been entirely complied with and should be "continued in effect until fully implemented."

On June 3, 1980, following a status conference the previous day attended only by attorneys for the School Board and the United States, the district court entered a minute order providing that counsel should contact the court within thirty days if "plaintiffs still have a viable interest in this case." ³ Copies of this order were sent all counsel who had ever appeared in the case, including those representing the 1973 intervention applicants, and none ever made any affirmative response. Thereafter, the United States and the School Board entered into widely publicized negotiations, which lasted nearly a year, and culminated on May 5, 1981 when they executed a proposed two-party Consent Decree, which the district court entered on May 7, 1981. Pursuant to the court's directions, the decree was publicized and a ten-day period allowed for objections. Ms. Phillips, though she timely filed objections of a limited nature, now essentially abandoned, did not seek to intervene until May 22, 1981, four days after the expiration of the period for filing objections. The United States and the School Board opposed her intervention, among other grounds, as being untimely. Without holding an evidentiary hearing, the district court denied intervention on that basis. It also ruled that Ms. Phillips' interests were adequately represented by the United States.

The complaint which Ms. Phillips seeks to make by her intervention is that the Consent Decree will leave too many one-race or predominantly one-race schools attended by too high a proportion of the district's black students. This is essentially the same complaint made by the 1973 intervention applicants concerning the 1973 plan. Concededly, however, the Consent Decree provides a material improvement in those respects from the 1973 plan, which the United States had not previously opposed and which the plaintiffs regarded as providing a unitary system.

Under the unchallenged facts here, Ms. Phillips, and those she sought to represent, knew, or at the very least should have known, of their interests in the case some six years or more before they sought intervention. Indeed, these same interests were reflected in the 1973 attempted intervention, sought on the basis that neither the plaintiffs nor the United States adequately represented those interests. That intervention was not pursued after 1974, and the school system continued to operate under the 1973 plan, with the blessing of the plaintiffs and without challenge by the United States, until the 1981 Consent Decree. That decree, an unquestioned material improvement over the 1973 plan from the point of view of the 1973 and 1981 applicants for intervention, violates no express or implied assurances to the would-be intervenors and represents no change of position adverse to their interests. Nor are they parties to it or bound by it. It was arrived at after an arduous and well-publicized settlement process lasting nearly a year, of which Ms. Phillips and the interests she seeks to represent were indisputably aware. Under these circumstances, the district court did not abuse its discretion in determining that intervention sought after the time for filing objections to the decree was untimely. No hearing was necessary because the matters apparent of record support the district court's determination, there being neither challenge to them nor proffered facts to justify or explain the evident untimeliness which they reflect. Indeed, the lack of a hearing, as such, is not the focus of Ms. Phillips' appeal.

By the express terms of Rule 24, Fed.R.Civ.P., it is apparent that timeliness is a prerequisite for intervention additional to all the other necessary conditions for that relief (including, as to intervention of right, lack of adequate representation by any existing party). And, it has been uniformly held that the district court's determination of whether the requested intervention is timely may be reversed only for abuse of discretion. As the Supreme Court stated in NAACP v. New York, 413 U.S. 345, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973) "... the application must be 'timely.' If it is untimely, intervention must be denied. Thus, the court where the action is pending must first be satisfied as to timeliness. Although the point to which the suit has progressed is one factor in the determination of timeliness, it is not solely dispositive. Timeliness is to be determined from all the circumstances. And it is to be determined by the court in the exercise of its sound discretion; unless that discretion is abused, the court's ruling will not be disturbed on review." Id. at 365-66, 93 S.Ct. at 2603 (footnotes omitted; emphasis added). ⁴

And, where facts justifying the conclusion that the application is untimely are undisputed and apparent on the face of the record, intervention may be denied on this ground without a hearing, as we expressly held in United States v. Louisiana, 669 F.2d 314, 315 (5th Cir.1982).

NAACP v. New York, supra, is particularly instructive. There, New York sued the United States in December 1971 for declaratory judgment that literacy tests in certain New York counties had not abridged the right to vote on account of race, and hence were not proscribed by the Voting Rights Act's prohibition of such tests in political subdivisions, such as the counties concerned, where less than half those of age voted in the 1968 presidential election. On March 10, 1972 the United States filed its answer stating it was without information sufficient to form a belief as to the truth of New York's allegations, and on March 17 New York moved for summary judgment, which the United States consented to on April 3. The NAACP and black voters and elected officials in one of the counties moved to intervene on April 7. The United States did not oppose the intervention. On April 13 the district court granted the summary judgment and denied the intervention. Affidavits,...